in that behalf, and no greater fees in any wise; and that The sheriff's the sheriff, for making of the proclamation at or near to fee for makthe church or chapel-door, as aforesaid, shall have twelve ing the pro pence. 4 & 5 W. & M. c. 22, (made perpetual by 7 & 8 Will. 3, c. 36, s. 4). clamation at the church door. the time of IV. "Whereas it is agreeable to justice, that proceedings to outlawries in criminal causes should be as public and notorious as in civil causes, because the consequences to persons outlawed in criminal causes are more fatal and dangerous to them and their posterities than in any other A proclacauses;" be it further enacted, by the authority aforesaid, mation at that upon the issuing of any exigent out of any of their the exigent, majesty's courts, against any person or persons for any cri- in criminal minal matter, before judgment or conviction, there shall cases to be issue out a writ of proclamation, bearing the same test and months bereturn, to the sheriff or sheriffs of the county, city, or town fore return. corporate, where the person or persons in the record of 31 Eliz. c.3 the said proceedings is or are mentioned to be or inhabit, according to the form of the statute made in the one-andthirtieth year of the reign of the late Queen Elizabeth, of blessed memory, which writ of proclamation shall be delivered to the said sheriff or sheriffs, three months before the return of the same. Note.-Outlawry is the being put out of the protection of the law: 4 Blac. Comm. 319. Process of outlawry lies, in all cases of treason, felony, trespass vi et armis, or conspiracy, but not in cases of misdemeanor of an inferior nature: 2 Haw. P. C. c. 27, s. 109. It has also been held to lie on an information filed, ex officio, by the AttorneyGeneral, for publishing an obscene libel: R. v. Wilkes, 4 Burr. 2527. It is issuable out of the King's Bench, upon an indictment either originally taken before them, or removed thither by certiorari: 1 H. P. C. 198. It may also be issued by justices of Oyer and Terminer, the process, in such case, being directed to the sheriff of the county where they hold their sessions; or by justices of the peace; but not by justices of gaol delivery, for they are to deliver the gaol, de prisonibus in eâ existentibus: id. 199. delivered 3 In cases of felony, the first stage towards outlawry is a writ of capias, and one capias before exigent is sufficient (see ante, p. 513.) But, in cases under the degree of felony, the commencement of the process is a venire facias ad respondendum, which, upon indictments in the King's Bench, is returnable immediately: 1 Chit. Cr. L. 351. Upon a return of non est inventus to the venire, there issue successively a capias, an alias capias, and a pluries. capias, directed to the sheriff of the county wherein the prosecution is commenced; for, in cases below felony, there must be three of these writs before the exigent can be awarded; unless the process be after judgment, in which case one capias is sufficient: 2 Haw. P. C. c. 27, s. 111. Upon a return of non est inventus to the pluries capias, the writ of exigent is awarded. This writ com mands the sheriff to cause the defendant to be demanded (exactus) from county court to county court, until he be outlawed, Bro. Coron. 166; and, in pursuance of the writ, the defendant is demanded or called upon to appear at five successive county courts. In addition to the writ of exigent, a writ of proclamation is issued by virtue of the statutes of Elizabeth and William (vide supra), which latter writ bears the same teste and return as the exigent: see R. v. Yendall, 4 T. R. 521. If there he not five county-court days between the delivery of the sheriff and the return-day, and he has called the defendant twice, or oftener, without his appearing, then, upon this being returned to the exigent, an allocatur exigent is issued, allowing the former exactions, and requiring the sheriff to proceed, and complete the requisite number: 1 Chit. Cr. L. 354. And, if all the three proclamations have not been made, a second writ of proclamation may be issued with the second exigent, allowing the proclamation already made, and directing the sheriff to complete the prescribed number: id. 356; 4 T. R. 528. If the defendant neither appears, nor is taken before the fifth county court or day of exaction, under the writ of exigent; judgment of outlawry, or, if the defendant be a woman, waiver, is given by the proper coroners, or one of them: 1 Chit. Cr. L. 356; and see Leeche's case, Cro. Jac. 660, Palm. 280; and, for the form of the judgement, see 3 Inst. 202. The sheriff's return to the writ of exigent must shew, specifically, in what county the county court was held, 2 H. P. C. 203; it must also state the day and year of the king to every exaction, Chapman's case, id.; it must also allege that the defendant did not appear and render himself; and, lastly, it must be subscribed with the sheriff's name and office: 2 H. P. C. 204; 4 T. R. 521; 1 Chit. Cr. L. 350. In the return to the writ of proclamation, the sheriff must specially shew how the proclamations were made, so as to enable the court to judge whether they were proper: 1 Chit. Cr. L. 359. For the form of the record of a judgment of outlawry, see R. v. Yendall, cited supra. In a record of outlawry, it appeared by the writ of proclamation (issued on the 25th of March), and by the return to the writ, that the prisoners were required" to render themselves to the sheriff, that he might have their bodies before his majesty's justices at the next assizes, &c." (which assizes were holden on the 9th of August following). It appeared, also, by the return to the last exigent, that the fifth county court was holden on the 19th day of May; at which court the defendants were duly demanded and outlawed. It was assigned for error, that it appeared by the writ of proclamation and return, that the defendants had a day given, to render themselves to the sheriff, until the next assizes, and, therefore, that the outlawry before those assizes was bad; but the court held that this was not the construction to be put upon the writ of proclamation and return, and that there was a distinction between this case and Barrington's case, 3 T. R. 501, where the writ of proclamation required the prisoner "to appear before the justices at the return of the writ," and he was outlawed before the return: R. v. Yendall, cited supra. The punishment for outlawries, upon indictments for misdemeanors, is the same as for outlawries upon civil actions,—namely, forfeiture of goods and chattels, and a disability to sue. But an outlawry in treason or felony, after the return of the exigent, and when it becomes matter of record, amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country: 4 Blac. Comm. 319; 2 Roll. Abr. 306, pl. 40; Co. Litt. 128, b.; R. v. Earler, Fort, 40; R.v. Simpson, 10 Mod. 379. In all cases, therefore, of treason and felony, the outlawry gives the forfeiture of the lands of the party outlawed, in the former case to the king, in the latter, to the lord of whom they are immediately holden: 2 H. P. C. 206; and in cases of treason or murder, the outlawry works corruption of blood and forfeiture of dower (se? ante, tit. Attainder"). With regard to the goods of the party against whom an exigent has been awarded, upon an indictment for treason or felony, the very issuing of the writ makes them forfeit to the king, or to the lord of some franchise to whom that liberty is granted, from the time of the teste of the writ: 2 H. P. C. 204. If, therefore, the writ of exigent be well awarded in the first instance, the goods will remain forfeit until the award of the exigent be reversed by special writ of error; for the reversal of the outlawry only is not a reversal of the writ of exigent. In this case, therefore, the writ of error should be, tum in adjudicatione brevis de exigi facias, quam in promulgatione utlagariæ: 2 H. P. C. 205. When the defendant is outlawed, a writ of capias utlagatum may be awarded to take him into custody, and upon this process any doors may be broken to apprehend the outlaw; for he who has defied the laws is no longer entitled to any peculiar protection: 1 Chit. Cr. L. 367; Semayne's case, 5 Rep. 91. But here it is to be remarked, that outlawry may be avoided or re versed at any time, from the very earliest stages of the process, even until the defendant has been taken upon the capias utlagatum. Nor is there any difference in this respect between civil and criminal cases; and it seems to be considered that the proceedings in outlawry generally, whether in indictments for felony or in civil actions, have always been, and ought to be, regulated by the same rules: see Bryan v. Wagstaff, 3 B. & C. 315. Therefore, it will be error, in criminal as well as civil cases, if the person outlawed was, at the time that outlawry was pronounced, within the age of discretion, that is, under the age of fourteen, Com. Dig. Utlagary (C. 1); or if, at the time the exigent was awarded, he was in prison, Litt. sec. 437, or out of the realm, O'Kearney's case, Skinner, 16. Nor will the circumstance of his departure, if before exigent awarded, for the express purpose of avoiding the consequences of the indictment, be a sufficient ground for preventing the reversal of an outlawry: Bryan v. Wagstaff, 8 D. & R. 216, S. C.; 5 B. & C. 314. It remains to be noticed that every outlawry determines upon the death of the party outlawed: see Tidd's Pr. 144, 9th ed. Therefore, in cases of felony below the degree of treason or murder, a reversal of the outlawry by the heir for the death of his ancestor, will be followed by restitution of the forfeited lands. As to what shall be sufficient evidence of the death of the ancestor, see Tidd's Pr. 144. It may be observed, lastly, that since the 7 Geo. 4, c. 64, s.9, the exigent against an accessory need not be stayed until outlawry of the principal. For more on the subject of outlawry, see 4 Inst. c. 55, Co. Litt. 128, a; 2 H. P. C. c. 26; 2 Haw. P. C. c. 27; Bac. Abr. Outlawries; Com. Dig. Utlagary; Williams, J. Outlawry; 1 Chit. Cr. L., c. 8; and see the cases of R. v. Wilkes, 4 Burr. 2537; R. v. Yendall, 4 T. R. 521; Hesse v. Wood, 4 Taunt. 691; Graham v. Henry, 1 B. & A. 131; R. v. Cooke, M'Lel, & Y. 196; Rayer Administer or means to tal. Using v. Cooke, 8 D. & R. 302; and Bryan v. Wagstaff,8 D. & R. 216; 5 B. & C. 314; and the numerous cases there cited. PROCURING ABORTION AND CONCEALMENT. 9 Geo. 4, c. 31. XIII. Be it enacted, that if any person, with intent to ing poison procure the miscarriage of any woman then being quick or using any with child, unlawfully and maliciously shall administer to instrument her, or cause to be taken by her, any poison or other procure the noxious thing, or shall use any instrument or other means miscarriage whatever, with the like intent, every such offender, and of any wo- every person counselling, aiding, or abetting such offender, man, being shall be guilty of felony, and, being convicted thereof, shall quick with child, capi- suffer death as a felon; and if any person, with intent to procure the miscarriage of any woman not being, or not being proved to be, then quick with child, unlawfully means with and maliciously shall administer to her, or cause to be taken by her, any medicine or other thing, or shall miscarriage, use any instrument or other means whatever, with the where the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term nor exceeding three years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment. intent to procure woman is not quick with child. A woman concealing the birth of her child. XIV. And be it enacted, that if any woman shall be delivered of a child, and shall, by secret burying, or other wise disposing of the dead body of the said child, endea vour to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at, or after its birth: provided always, that if any woman tried for the murder of her child, shall be acquitted thereof, it shall be lawful for the jury, by whose verdict she shall be acquitted, to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying, or otherwise disposing of the dead body of such child, endeavour to conceal the birth thereof, and thereupon the court may pass such sentence as if she had been convicted upon an indictment for the concealment of the birth. Note. It will be seen that the 13th section of this statute makes it a capital felony to use any instrument or other means, with intent to procure the miscarriage of a woman, being quick with child. It appears, therefore, that, if the intent be felonious, the crime, under this section, will be complete, whether the instrument or other means used be dangerous or not. The words "quick with child" mean, that the woman has felt the child move within her: R. v. Phillips, 3 Camp. 77. It is not necessary to prove that the poison used is pre cisely of the same nature with that laid in the indictment. Thus, if it be laid to be a decoction, and proved to be an infusion, the variance is immaterial: S. C. The 14th section of this statute is an improvement upon the enactment on the same subject, in the 43 Geo. 3, c. 58. Under that act it was held, that a jury could only find the prisoner guilty of concealment, upon an indictment for the murder of her child, R. v. Parkinson, 1 Russ. 475, note h.; but the concealment is now made an indictable misdemeanor. PUNISHMENT OF OFFENDERS. be awarded Whereas the punishment of the pillory has in many cases been found inexpedient, and not fully to answer the purpose for which it was intended: be it therefore enacted, Judgment &c., that from and after the passing of this act, judgment of pillory to shall not be given and awarded against any person or per- for certain sons convicted of any offence, that such person or persons offences do stand in or upon the pillory, except for the offences only. hereinafter mentioned; any law, statute, or usage to the contrary notwithstanding: provided that all laws now in force, whereby any person is subject to punishment for the taking any false oath, or for committing any manner of wilful and corrupt perjury, or for the procuring or suborning any other person so to do, or for wilfully, falsely, and corruptly affirming or declaring, or procuring or suborning any other person so to affirm and declare, in any matter or thing, which, if the same had been deposed in the usual form, would have amounted to wilful and corrupt perjury, shall continue and be in full force and effect; and that all persons guilty of any of the said several offences shall incur and suffer the same punishment, penalties, and forfeitures as such persons were subject to by the laws and statutes of this realm, or any of them, before the passing of this act, and as if this act had not been made. fine or im II. And be it further enacted, that in all cases where the Court may punishment of the pillory has hitherto formed the whole, prison ofor a part of the judgment to be pronounced, it shall and fenders. may be lawful for the court, before whom such offence is tried, to pass such sentence of fine or imprisonment, or of both, in lieu of the sentence of pillory, as to the said court shall seem most proper: provided that nothing herein con |